D'Agostino v. Pennsylvania R. Co.

• Decision Date: 12 June 1905
• Parties: D'AGOSTINO v. PENNSYLVANIA R. CO.
• Court: New Jersey Supreme Court

60 A. 1113

72 N.J.L. 358

D'AGOSTINO

v. PENNSYLVANIA R. CO.

Supreme Court of New Jersey.

June 12, 1905.

(Syllabus by the Court.)

Error to Circuit Court, Essex County.

Action by Antonio D'Agostino, administrator, against the Pennsylvania Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Argued February term, 1905, before the CHIEF JUSTICE and GARRETSON, PITNEY, and FORT, JJ.

Vredenburgh, Wall & Van Winkle, for plaintiff in error. Elvin W. Crane and Francis Child, for defendant in error.

FORT, J. The plaintiff's intestate was employed by the defendant as a track laborer. On March 18, 1902, he was working on the tracks of the company at Waverly. There are several paralleling tracks at this point. At the time he was killed the deceased was working upon track No. 5. The gang of which the deceased was a member was working on tracks Nos. 3, 4, and 5. Deceased was engaged in sorting loose stones from the earth on track No. 5, which was the drill track, and throwing the stones, when sorted, on track No. 4, which is the westbound passenger track. While at work the deceased was necessarily bent over. He could not, of course, devote his attention to his work and the approaching trains at the same time. The proof in the cause shows that there was a foreman and an assistant foreman present, who did not actually engage in the work, but only acted as superintendents. The proof was that the foreman of gangs of men at work as the deceased and his fellow laborers were at the time he was killed were accustomed, upon the approach of a train, to call out to the men, "Look out on track No. 3!" "Look out on track No. 4!" or whatever track it happened to be upon which the train was approaching. It is clear that the men relied upon this warning, and it is equally clear that it was the custom of the company to give it. It is conceded that when the deceased was killed by the backing upon him of a freight engine on track No. 5 no such warning was given. Both the foreman and his assistant were absent at the time. They were at the "shanty," some distance away. It was testified by the foreman that it was the custom, when he left the men unprotected, owing to his going on some temporary duty, for him to warn them of his leaving, and to caution them to look out for themselves; to call out to them, "Now boys, look out!" He says he did this on this day, but it appears by the proof that, if he called at all, he did not call so that all heard, and that the deceased was too far away to hear if he did so call.

On this state of facts we think that the deceased had a right to rely upon the fact that, if there was any danger from an...